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2013 (11) TMI 90 - AT - CustomsRectification of mistake - Date of communication of the order-in-original - Held that:- If there was a presumption under Section 153 of the Act against the appellant, an effective opportunity of rebuttal was given to them and we satisfied ourselves that, instead of rebuttal, there was a consensus between the appellant and the department regarding the date of communication of the order-in-original to the appellant. Proceeding on this basis, this bench upheld the impugned order and dismissed the assessee s appeal. No mistake whatsoever, let alone an apparent mistake, is found in the final order passed by this bench. Appellant has made an attempt to add facts and materials to their case through the ROM application and the documents filed therewith. Such facts and materials can hardly constitute the record of the case for the purpose of subsection 2 of section 129B of the Act. We have come across additional evidence in the form of two affidavits but such additional evidence cannot be taken into account under subsection 2 of Section 129B ibid. In answer to a query from the bench, the learned counsel for the appellant has failed to show us documentary evidence of a copy of the order-in-original having been received on 19.1.2009 from the Commissioner s office. The appellant could not adduce such evidence before the Commissioner (Appeals) either. In other words, the appellant has failed to rebut the aforesaid presumption at successive appellate stages. The ROM application appears to be a desperate attempt - Decided against assessee.
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